Civil litigation, no footnotes and the outcome is anyone's guess

Blessed (or cursed) with the ability to see the funny side of most things, I have recently had cause to chuckle over, of all things, the Civil Procedure Rules (CPR).

You may remember that the CPR was introduced as a result of Lord Woolf's initiative to simplify civil procedure; to do away with the historical build-up of judicial pronouncement on the existing rules; and generally put the two volumes of the White Book, in which all this was recorded, in the bin.

Instead, civil litigation was to be subject to the overriding objective that required the courts to ensure that the parties were 'on an equal footing' and to deal with cases in ways that were 'proportionate' with regard to the amount of money at stake, the importance of the case, the complexity of the issues and the financial position of the parties.

All this was, of course, very fine and dandy but what did it mean in terms of the practical, dayto-day nuts and bolts of litigation? In the old days one would turn to the White Book and quiz the footnotes to find out how any particular provision applied to any particular case. When the CPR was introduced in 1999 there were no footnotes and it was anybody's guess.

It says something for the Pandorian nature of some of the concepts underlying the CPR that, in the five years since their inception, the few brief paragraphs of the overriding objective, for example, have now spawned no fewer than 16 pages of closely printed footnotes, recording innumerable parties' attempts to find out what it all means in the context of their particular case.

And this is where the scope for humour comes in because, while some of their attempts would have been considered audacious or risible under the old regime, who can blame them for having a go today, now that every thing is up for grabs, as it were?

The case of Maltez v Lewis (1999), for example, was a copyright dispute in which the claimant had instructed a junior barrister with only seven years' experience, and priced accordingly. The defendant, for its part, instructed an experienced and expensive QC. Hitherto parties were free to instruct whomsoever they wished, irrespective of the cost consequences.

Post-CPR, however, the claimant felt able to object to leading counsel's involvement on the grounds that it was contrary to the overriding objective and the intention that the parties should be on an equal footing.

The thrust of its objection could be seen to be: 'I object to the opposition because it is better than mine, ' and the trial judge was obliged to explore all the intricacies of legal representation before deciding that the CPR provided no basis upon which the court could prevent a party from instructing the legal representative of their choice.

More recently, the case of Mattel Inc v RSW (5.7.04) records a similarly cheeky attempt by a defendant to deny a successful claimant their costs. Mattel manufactured, among other things, doll's houses bearing its registered trademark. It discovered that counterfeit versions of these toys were being sold and instructed its usual London solicitors to investigate. It issued proceedings and obtained a search order against RSW, which was distributing the counterfeits from Manchester.

As so often happens in such cases, the parties reached a compromise and RSW agreed to pay Mattel's costs. It objected to footing the whole bill, however, on the basis that it was 'disproportionate' and reflected the rates charged by Mattel's expensive London solicitors. The judge agreed that the case was 'a Manchester case' and that Manchester, rather than London, rates should apply.

Happily for Mattel, the Court of Appeal held that the judge had been wrong in his approach and had not taken into account that it was entitled to use the solicitors who usually acted for it on infringement matters, who were familiar with its products and able to act speedily, as was necessary in such cases.

This, of course, reflects the established position, but you have to admire RSW for having a go.

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